(dissenting).— I concur in all that is said in the foregoing opinion save only as to the instruction given to the jury in which the court undertook to tell them under what circumstances they were at liberty to disregard the testimony of a witness. The instruction complained of is as follows:
“Another rule of law is that where the jury are convinced that any witness has testified falsely before you as to any one thing, you are at liberty to discredit his evidence entirely; the law does not say you must disregard his evidence because his evidence may be supported by other evidence as to give his story credit; but if you are satisfied that any witness testified falsely as to any one material thing, it is sufficient for you, if you think proper, to disregard his testimony entirely.”
The giving of this instruction constituted, in my judgment, reversible error. The assumption of the majority that there is no difference or distinction be*556tween testifying falsely and “ knowingly and wilfully ” testifying falsely, is, in my opinion, entirely unsupported by reason or authority. I had supposed the proposition to be settled in the law that the maxim “falsus in uno falsus in omnibus” applied only to cases of wilful falsity, and I have been unable to find a case that supports the conclusion of the majority. On the contrary, the cases which have been reversed for the giving of the instruction here complained of are innumerable. To say that one who by mistake or through infirmity of memory makes a false statement thereby “makes a wilful misstatement” is, in my opinion, to ignore the rules of both law and language. .Webster defines “falsely” as being “in a false manner; erroneously.” Another definition is “not truly.” It may be any of these and yet be the result of honest mistake rather than wilful design.
In Childs v. State, 76 Ala. 93, the court say:
“A statement made in mistake may be false, and yet it would not justify a disregard of all the witness might say. ... To warrant the application of the maxim [falsus in uno falsus in omnibus] the alleged false statement must have been made knowingly, intentionally, or with a design to deceive or mislead. Unless the jury believe such was, or must have been, the case, then an erroneous statement does not, in and of itself, require by any absolute rule that the whole testimony must be disbelieved.”
In Grimes v. State, 63 Ala. 166, the court say:
“ Its falsity must result from design,- and not from mere mistake, or infirmity, which affects only the character of the witness for accuracy.”
In Wilkins v. Earle, 44 N. Y. 172 (4 Am. Rep. 655), the court say:
“The jury must believe the evidence to be wilfully *557false, in some particular, before they are authorzed to discredit the whole evidence of a witness.
This proposition is fully supported in: People v. Sprague, 53 Cal. 491; Pierce v. State, 53 Ga. 365; Mead v. McGraw, 19 Ohio St. 55; Jones v. People, 2 Colo. 351; Hoge v. People, 117 Ill. 35 (6 N. E. 796); People v. Strong, 30 Cal. 151; Wharton, Evidence, § 412; Abbott’s Law Dictionary, vol. 1, p. 480.
See, also, 29 Am. & Eng. Enc. Law, 780, and the long list of authorities there cited. Indeed, the authorities upon this proposition might be multiplied indefinitely. I know of no good reason for departing from the rule so long established and universally adopted, and when we stop to consider that an instruction of this character is applicable to almost every case in which disputed questions of fact arise, it may well be doubted if the profession or the public will profit by the innovation. To constitute perjury in this state (and everywhere else so far as I am advised) one must “wilfully and contrary ” to his oath state as true “ material matter which he knoios to be false.” Would any lawyer contend that it would be sufficient to authorize a conviction for perjury that the jury should find that a particular statement was “falsely” made? The instruction told the jury that if they were satisfied that any witness “testified falsely” as to any one material thing, they were at liberty to disregard his entire testimony. This, as we have seen, was in law and in English equivalent to telling them that if they were satisfied that a witness erroneously stated any material matter through honest mistake or inadvertence, although without design to deceive or mislead, they were at liberty to disregard the entire testimony of such witness; hence the instruction was misleading and furnished an improper standard by which the *558jury were authorized to measure and weigh the testimony.
I find it difficult to disregard the authority of adjudicated cases, and therefore very reluctantly dissent from so much of the opinion of the majority as relates to the question here discussed, as well as from the conclusion reached. I think the judgment should be reversed.
Anders, J., concurs in the above.